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STATE OF
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BEFORE THE
INDIANA DEPARTMENT OF |
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COUNTY OF
MARION |
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ENVIRONMENTAL
MANAGEMENT |
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COMMISSIONER
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OF
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Complainant, |
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v. |
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Case No.
2018-25239-U |
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Mac’s convenience stores LLc, |
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Respondent. |
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AGREED ORDER
Complainant
and Respondent desire to settle and compromise this action without hearing or
adjudication of any issue of fact or law, and consent to the entry of the
following Findings of Fact and Order.
Pursuant to IC 13-30-3-3, entry into the terms of this Agreed Order does
not constitute an admission of any violation contained herein. Respondent’s
entry into this Agreed Order shall not constitute a waiver of any defense,
legal or equitable, which Respondent may have in any future administrative or
judicial proceeding, except a proceeding to enforce this order.
I.
FINDINGS OF FACT
1.
Complainant is the Commissioner (“Complainant”)
of the Indiana Department of Environmental Management (“IDEM”), a department of
the State of Indiana created by Indiana Code (“IC”) 13-13-1-1.
2.
Respondent is Mac’s Convenience Stores LLC
(“Respondent”), which owns/operates the facility with Facility ID No. 9933,
located at 901 East Bradford Street, in Marion, Grant County, Indiana (“Site”).
3.
Respondent owns/operates one (1) eight thousand
(8,000) gallon gasoline underground storage tank (UST) and two (2) six thousand
(6,000) gallon gasoline USTs. The tanks are steel construction with an interior
lining and were installed in 1971.
4.
IDEM has jurisdiction over the parties and the
subject matter of this action.
5.
Pursuant to IC 13-30-3-3, IDEM issued a Notice
of Violation (“NOV”) via Certified Mail to Darrel Davis, President of Mac’s
Convenience Stores LLC and Corporation Service Company, Registered Agent for
Mac’s Convenience Stores LLC.
6.
All rule citations herein refer to the rule in
effect at the time of the inspection unless otherwise noted.
7.
During an investigation, including an inspection
conducted by a representative of IDEM, the following violation was found:
a. Pursuant to 329 Indiana Administrative
Code (“IAC”) 9-2.1-1(b)(2)(B), if a steel tank is upgraded by internal lining, within one (1) year
after lining and every five (5) years thereafter, the lining and tank must be
internally inspected and found to be structurally sound with the lining and
tank still performing in accordance with requirements under 329 IAC 9-3.1-4.
Respondent failed to submit
documentation missing from the July 7, 2017 video inspection conducted to
verify the integrity of the lined USTs.
Respondent conducted video inspections
of tank number one, two, and three on August 28, 2018 and submitted the results
for IDEM review on October 3, 2018.
The liner inspection was determined to
be invalid due to an error in the age of the tanks. On January 23, 2019, IDEM
requested that Circle K correct the calculation and resubmit the data. The UST
assessment was resubmitted on May 7, 2019. Based on the report, the USTs were
determined to be beyond the median age for failure, but with a low leakage
potential. Tank Tech recommended conducting an internal inspection. On May 17,
2019, internal tank inspections were performed and the tanks were reported to
meet the requirements. Tank Tech is assembling a report for IDEM review.
8. In recognition of the settlement
reached, Respondent waives any right to administrative and judicial review of
this Agreed Order.
II. ORDER
1.
This Agreed Order shall be effective
(“Effective Date”) when it is approved by Complainant or Complainant’s
delegate, and has been received by Respondent. This Agreed Order shall have no
force or effect until the Effective Date.
2.
329 Indiana Administrative Code (“IAC”) 9,
effective June 28, 2018, incorporates certain federal underground storage tank
requirements found in 40 Code of Federal Regulations (“CFR”) Part 280,
including those identified below.
3.
Within sixty (60) days of the Effective Date,
Respondent shall submit a final report with the results of the internal tank
inspections conducted on May 17, 2019.
4.
If the UST liners are not performing in
accordance with the original design specifications and cannot be repaired in
accordance with a recognized code of practice, as required by 40 CFR 280.21,
then Respondent shall complete the following actions outlined in Order paragraphs
five (5) through eight (8).
5.
Within one hundred twenty (120) days of the
Effective Date, Respondent shall permanently close the underground storage
tanks in accordance with the requirements of 329 IAC 9-6-2.1 through 329 IAC
9-6-4, including the applicable requirements for corrective action under 329
IAC 9-5-1 through 329 IAC 9-5-8.
6.
At least thirty (30) days before beginning
closure, Respondent shall notify IDEM using the notification form required by
329 IAC 9-2-2(a), and the office of the state fire marshal of intent to close
the underground storage tanks.
7.
At least fourteen (14) days prior to scheduled
closure activities, Respondent shall notify IDEM’s Underground Storage Tank
Section to permit an agent of IDEM to view and inspect the activities performed
pursuant to closure of the UST systems.
8.
Within thirty (30) days of closing the UST
system, Respondent shall submit a closure report to IDEM, which shall include
the notification form required by 329 IAC 9-2-2(a).
9.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
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Amy Elliott, Enforcement Case Manager |
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Office of Land Quality |
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Indiana Department of Environmental
Management |
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100 North Senate Avenue |
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Indianapolis, IN 46204-2251 |
10.
Respondent is assessed and agrees to pay a
civil penalty of two thousand eight hundred dollars ($2,800.00). Said penalty
amount shall be due and payable to the Underground Petroleum Storage Tank Trust
Fund within thirty (30) days of the Effective Date; the 30th day
being the “Due Date”.
11.
In the event the terms and conditions of the
following paragraphs are violated, Complainant may assess and Respondent shall
pay a stipulated penalty in the following amount:
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Paragraph |
Penalty |
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Order
paragraph # 3 |
$100.00 per
month late |
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Order
paragraph # 5 |
$500.00 per
month late, if applicable |
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Order
paragraph # 6 |
$250.00 per
month late, if applicable |
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Order
paragraph # 8 |
$500.00 per
month late, if applicable |
12.
Stipulated penalties shall be due and payable
no later than the 30th day after Respondent receives written notice
that Complainant has determined a stipulated penalty is due; the 30th
day being the “Due Date”. Complainant may notify Respondent at any time that a stipulated
penalty is due. Failure to notify Respondent in writing in a timely manner of
stipulated penalty assessment shall not waive Complainant’s right to collect
such stipulated penalty or preclude Complainant from seeking additional relief
against Respondent for violation of this Agreed Order. Neither assessment nor
payment of stipulated penalties shall preclude Complainant from seeking
additional relief against Respondent for a violation of this Agreed Order; such
additional relief includes any remedies or sanctions available pursuant to
Indiana law, including, but not limited to, civil penalties pursuant to IC
13-30-4.
13.
Civil and stipulated penalties are payable by
check to the “Underground Petroleum Storage Tank Trust Fund.” Checks shall
include the Case Number of this action and shall be mailed to:
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Indiana Department of Environmental
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Office of Legal Counsel |
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IGCN, Room N1307 |
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100 North Senate Avenue |
14.
In the event that the monies due to IDEM
pursuant to this Agreed Order are not paid on or before their Due Date,
Respondent shall pay interest on the unpaid balance at the rate established by
IC 24-4.6-1. The interest shall be
computed as having accrued from the Due Date until the date that Respondent
pays any unpaid balance. Such interest
shall be payable to the Underground Petroleum Storage Tank Trust Fund, and
shall be payable to IDEM in the manner specified in Paragraph 13, above.
15.
This Agreed Order shall apply to and be binding
upon Respondent its successors and assigns. Respondent’s signatories to this
Agreed Order certify that they are fully authorized to execute this Agreed
Order and legally bind the party they represent. No change in ownership,
corporate, or partnership status of Respondent shall in any way alter its status
or responsibilities under this Agreed Order.
16.
In the event that any terms of this Agreed
Order are found to be invalid, the remaining terms shall remain in full force
and effect and shall be construed and enforced as if this Agreed Order did not
contain the invalid terms.
17.
Respondent shall provide a copy of this Agreed
Order, if in force, to any subsequent owners or successors before ownership
rights are transferred. Respondent shall ensure that all contractors, firms and
other persons performing work under this Agreed Order comply with the terms of
this Agreed Order.
18.
This Agreed Order is not
and shall not be interpreted to be a permit or a modification of an existing
permit. This Agreed Order, and IDEM’s review or approval of any submittal made
by Respondent pursuant to this Agreed Order, shall not in any way relieve
Respondent of its obligation to comply with the requirements of its applicable
permits or any applicable Federal or State law or regulation.
19.
Complainant does not, by
its approval of this Agreed Order, warrant or aver in any manner that
Respondent’s compliance with any aspect of this Agreed Order will result in
compliance with the provisions of any permit, order, or any applicable Federal
or State law or regulation. Additionally, IDEM or anyone acting on its behalf
shall not be held liable for any costs or penalties Respondent may incur as a
result of Respondent’s efforts to comply with this Agreed Order.
20.
Nothing in this Agreed
Order shall prevent or limit IDEM’s rights to obtain penalties or injunctive
relief under any applicable Federal or State law or regulation, except that
IDEM may not, and hereby waives its right to, seek additional civil penalties
for the same violations specified in the NOV.
21.
Nothing in this Agreed
Order shall prevent IDEM or anyone acting on its behalf from communicating with
the EPA or any other agency or entity about any matters relating to this
enforcement action. IDEM or anyone acting on its behalf shall not be held
liable for any costs or penalties Respondent may incur as a result of such
communications with the EPA or any other agency or entity.
22.
This Agreed Order shall remain in effect until
IDEM issues a Resolution of Case letter to Respondent.
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TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of Environmental Management |
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By: _________________________ |
By:
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Linda M. McClure, Section Chief |
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Enforcement Section |
Printed: ______________________ |
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Office of Land
Quality |
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Title: ________________________ |
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Date: __________________ |
Date: _______________________ |
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COUNSEL FOR RESPONDENT: |
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By: ________________________ |
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Date: ______________________ |
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APPROVED AND
ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
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For the
Commissioner: |
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____Signed
7/16/19_______________ |
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Peggy Dorsey, Assistant Commissioner |
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Office of
Land Quality |
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